CONTESTING PROBATED CLAIMS IN AN ESTATE

October 19, 2010 § 4 Comments

Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate.  The statute requires notice to the claimant and a hearing.

This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time.  Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.

At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate). 

The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.

Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.

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